Bergdahl Lawyer Files Lawsuit Over FOIA Request

By
Joseph L. Jordan, Attorney at Law
|March 22, 2016

There has been a new development in the battle to release certain classified
documents to Sgt. Bowe Bergdahl's defense counsel before his upcoming
court-martial: Attorney Eugene R. Fidell has filed suit against the Department
of Defense, claiming that his Freedom of Information Act request to receive
the documents has been purposefully delayed. Bergdahl's legal team
is looking to review all communications between Congress and the Department
of Defense since Bergdahl's 2014 release from Taliban captivity.

As the Fay Observer reports, Fidell is claiming that he and Bergdahl's
other attorneys need timely access to the documents in order to properly
defend Bergdahl in his court-martial scheduled for August. "The (Department
of Defense's) failure to afford expedited processing to plaintiff's
FOIA request is arbitrary and capricious, an abuse of discretion, unsupported
by substantial evidence on the whole record and contrary to law,"
the lawsuit states. "Given the scheduled date of Sgt. Bergdahl's
trial, the requested records have a particular value that will be lost
if not disseminated quickly."

Fidell's suit claims that his expedited request was placed in normal
processing order due to the DoD's geographical access to the requested
documents-- an assertion that Fidell claims is untrue. In the normal processing
order, the DoD claims that they will not be able to deliver the documents
to Fidell for nine months.

Suspected "Congressional Influence"

Bergdahl's legal team claims that there has been undue congressional
influence on the Bergdahl case, a theory they plan to prove with their
FOIA request. "Given the extraordinary level of sustained public
interest in Sgt. Bergdahl's case and the clear impropriety of congressional
influence over official decision-making in individual cases arising under
the Uniform Code of Military Justice, the requested records will serve
an urgency purpose and be meaningful in the sense that they will provide
a greater understanding of actual or alleged federal government activity
on the part of the public-at-large than that which existed before such
information was disseminated," the suit details.

The suspicion is likely linked to statements made by Senator (and former
POW) John McCain late last year. When speaking to the Boston Globe, McCain
characterized Bergdahl as a deserter and said that, even if Bergdahl escaped
punishment via a court-martial, the Senate Armed Services Committee would
hold him responsible. "And I am not prejudging, OK, but it is well
known that in the searches for Bergdahl, after—we know now—he
deserted, there are allegations that some American soldiers were killed
or wounded, or at the very least put their lives in danger, searching
for what is clearly a deserter," McCain said, adding: "We need
to have a hearing on that."

Attorney Jordan's Take

While Bergdahl's case has undeniably captured the attention of Americans
nationwide, there seems to be little concern—especially from prominent
political figures—for due process. According to Attorney Joseph
Jordan, Senator McCain joins fellow GOP figure Donald Trump in inappropriately
putting forth a perspective on Bergdahl to the public that has not yet
been sorted out in a court of law.

"Even Congress seems to have an issue with innocence until proven
guilty. Senator McCain on is now on record stating that SGT Bergdahl is
a deserter. His statement is as prejudicial as it gets. How can a member
of congress be so irresponsible as to make such a statement understanding
our principals of justice for which he is ultimately responsible for as
a lawmaker?" Attorney Jordan states. "No one can expect Sgt.
Bergdahl to get a fair trial when our lawmakers are passing judgment before
the trial even occurs. This kind of thinking bleeds into every mind of
a potential panel member for a court martial. It has to stop. Even Congressmen
need to be held accountable for their words."

If you are a military servicemember that has been accused of a crime, we
invite you to contact our firm today.
Joseph Jordan, Attorney at Law is a military defense attorney with over a decade of experience in the
U.S. Army. He now travels the globe to ensure that accused members of
our armed services are defended against undue allegations.

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